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Aвтор: Ефимова Юлия 2006г., Москва, Российская Экономическая Академия им. Г.В. Плеханова, финансовое право, "5"
PLEKHANOV RUSSIAN ACADEMY OF ECONOMICS Financial Law Report "The Tax Law" Student: Julia Efimova Academy supervisors: Ekaterina Vladimirovna Bagreeva Per Oyvind Berg-Knutsen Moscow 2006 Contents Introduction3 1) Taxes and the Tax Law4 1) Taxes and the Tax Law4 2) Taxpayers7 3) Tax authorities9 4) Tax offences10 4.1) Court Proceeding in a tax offence case11 Conclusion12 Bibliography:13 Introduction Among economic instruments, by means of which the state influences market economy, taxes play the important role. In conditions of market economy any state widely uses a tax policy as the certain regulator of influence on the negative phenomena of the market. Taxes, as well as all tax system, are the powerful tool of management of economy in conditions of the market. The use of the taxes is one of the economical methods of government and maintenance of interconnection of the interests of the State with individual persons, commercial organizations forms of ownership and organizational - the legal form of the enterprise. By means of taxes mutual relations of businessmen, the enterprises of all forms of ownership with the state and local budgets, with banks, and also with the higher organizations are defined. 1) Taxes and the Tax Law A tax is a compulsory charge or other levy imposed on an individual or a legal entity by a state or a functional equivalent of a state (e.g., tribes, secessionist movements or revolutionary movements). Taxes could also be imposed by a sub national entity.1 A tax shall be defined as an obligatory and individually non-refundable payment collected from organisations and individuals in the form of alienation of money resources owned by them by right of ownership, economic jurisdiction or operational management for purposes of financing the activity of the state and/or municipalities.2 Taxes play the most important role of the state revenue. In 2002 the taxes made up 81,21% 3 of the profitable part of the federal budget. Tax law is the codified system of financial laws that describes government levies (taxes) on economic transactions. The tax law represents a branch of legal system of the Russian Federation which regulates public relations in the sphere of the taxation, which means the relations in connection with the realization of taxation and other obligatory payments, the organization and functioning of the system of tax regulation and the tax control over the all levels of the government and local self-government. Legislation on taxes and charges consists of the Tax Code, federal and regional laws, local regulative acts. Tax laws which had been adopted before the Tax Code came into force are valid in the part not conflicting with the Tax Code. 4 A comprehensive Tax Code has been progressively introduced since 1999 and is now largely implemented. The Tax Code is the main legislative tax act which consists of two parts. The first part includes general definitions, lists rights and duties of taxpayers and tax authorities, sets forms and methods of tax control, establishes liability for tax offences, and so on. The second part of the Tax Code consists of chapters covering individual taxes - VAT (Value Added Tax), tax on profit and others. Orders, instructions, guidelines of the Ministry for taxes and charges are mandatory only for the tax bodies and do not relate to tax legislative acts. Only instructions on the order of filling in tax returns are mandatory for taxpayers. The current tax structure was introduced in 1992 and follows the federal nature of Russia in that the various republics and regions that comprise the Russian Federation have certain rights as regards levying taxes. Taxes may be viewed as follows: Federal: Applied in the whole of the Russian Federation, at uniform rates. Examples of this category are: Value Added Tax (20%)5, customs duty, income tax from physical persons, enterprise profit tax. Regional: Applied in the whole of the Russian Federation, but the entire tax rate, or the locally collected portion, is determined regionally. Collection of the tax is split between the amounts allocated regionally, or to the centre. An example of this category is corporate Profits Tax (currently, the federal component is 6.5 percent, with additional regional components of 13.5 - 17.5 percent)6. Local Taxes: established by the local or regional authority and has only local force. Collection is entirely local. An example of this category is a Land Tax. Date of enforcement Federal laws introducing amendments to the Tax Code that establish new taxes and charges, regional and local acts of tax legislation introducing new taxes (charges) take effect not earlier than January 1 of the year following the year of their adoption and not earlier than one month after their official publication. Other legislative acts on taxes and charges come to force not earlier than upon expiry of one month after the date of their official publication and not earlier than first day of the next tax period set for the specific tax. Legislative acts on taxes (except charges) also take effect not earlier than the first day of the next respective tax period. Elements of taxation According to the Article 17 of the Tax Code of the Russian Federation "General Conditions of Imposition of Taxes and Fees" , "1. A tax shall only be considered as imposed if the taxpayers and the elements of taxation are defined, namely," * Object of Taxation (Art. 38 of the Tax Code) * Tax Base (Art. 53 of the Tax Code) * Tax Period (Art. 55 of the Tax Code) * Tax Rates (Art. 53 of the Tax Code) * Procedure of Tax Assessment (Art. 52 of the Tax Code) * Deadlines and Procedure for Paying Taxes and Fees (Art. 57, 58 of the Tax Code) "2. In tax imposition, a legislative act on taxes and dues may also provide if necessary tax benefits and grounds for using them by the taxpayer. 3. In imposing fees, their payers and elements of taxation shall be defined relative to particular fees."7 2) Taxpayers Taxpayers are organizations and natural persons who are under an obligation to pay taxes and/or charges. 8 Registration of taxpayers * All organisations and individual entrepreneurs must be registered with tax bodies within 10 days following the date of their state registration. * Registration with tax bodies is performed at the place of organisation's location (residential address for individual entrepreneurs) * An organisation acting via separate divisions, property or vehicles must register both at its place of location and at the place of location of each of its division and its property * Natural persons who are not individual entrepreneurs are not obliged to register with the tax bodies on their own * Each taxpayer is given a personal identification number of taxpayer when registered with the tax bodies Rights of taxpayers: * To claim full compensation for losses caused by unlawful decisions of the tax bodies or unlawful actions (inactions) of their officials * To receive from the tax bodies at the place of registration free information on current taxes and charges, legislation on taxes and charges, and also on the rights and duties of taxpayers, and powers of the tax bodies and their officials * To receive written explanations on application of tax legislation from the tax bodies and other authorised state bodies. * To represent their interests before the tax bodies in person or via their representative Duties of taxpayers: * To pay taxes and charges set in accordance with law * To register with tax bodies * To keep records of their income (expenses) and objects of taxation * To file tax returns and financial reports and to provide documents required to calculate and pay taxes to the tax bodies and their officials * To fulfil lawful requirements of tax bodies to eliminate tax offences revealed and not to hinder lawful activity of tax officials * To provide tax authority at the place of registration with information Penalties for violating the order of registration with tax bodies * Exceeding the 10 days term set for filing the application for registration: for up to 90 days 5,000 Rb of penalty * Over 90 days 10,000 Rb of penalty * Carrying on activities by an organisation or an individual entrepreneur without registration with the tax bodies: for up to 3 months 10% of income derived from such activity during the said period but not less than 20,000 Rb for more than 3 months 20% of the income derived during the period exceeding 90 days from activity carried on during the said period without registration with the tax bodies 3) Tax authorities Rights of tax authorities: * To demand from taxpayers and other obligated persons presentation of documents that can be used as a reference for the computation and payment of taxes * Suspend operations with taxpayers' bank accounts and seize their property * To conduct an examination (inspection) of any premises and grounds used by the taxpayer for generating taxable income or for keeping objects of taxation, regardless of their location; to conduct inventory of the taxpayers property * To determine amounts of taxes owed by taxpayers, on the basis of available information on the taxpayer or by analogy with other similar taxpayers, in case the taxpayer denies tax body officials admittance to his/her premises and areas for examination (inspection), or fails to present the documents needed for computation of the taxes due for over two months * To conduct an audit of taxpayers and seize the documents confirming the fact of tax offences, providing there are sufficient reasons to believe that the documents will be destroyed, concealed or falsified * To collect taxes in arrears and penalizing interest accrued Obligations of tax authorities: * To register taxpayers and keep all related data * To inform taxpayers of the effective taxes, provide them with established accounting forms and explain the procedure of their processing, as well as the procedure of tax calculation and payment * To refund or offset excessively paid taxes and penalties according to the procedure set by the Tax Code. Tax authorities and their officials bear responsibility for: * damage inflicted on the taxpayer in the course of unlawful actions (decisions) or inactions * non-fulfillment or improper fulfillment of their duties on securing taxpayer's rights 4) Tax offences Responsibility for tax offences * Each taxpayer is presumed innocent of committing a tax offence until his guilt is proven in accordance with the procedure provided for by the federal law and established by a legally effective court ruling. * A taxpayer is not required to prove his innocence. The burden of presenting evidence of the tax offence and proving taxpayers guilt in committing it is born by the tax authorities. Ineradicable doubts as to the guilt of the taxpayer in committing a tax offence are interpreted in favour of the taxpayer. * Taking liable for commitment of a tax offence: o of an organisation ≈ does not release its officials from administrative, criminal or other responsibility if sufficient grounds are present o of a taxpayer ≈ does not release him from the obligation to pay taxes and penalising interest Administrative liability * Administrative liability in the field of taxes and charges may be imposed on the following persons: o taxpayer's officials o natural persons - taxpayers if the exposed action is not qualified as a tax offence * Administrative penalties for administrative offences in the field of taxation are levied on the basis of a court ruling. Court proceedings are initiated in accordance with a protocol on an administrative offence drawn up by the tax body Tax audit Tax audits may cover no more than 3 calendar years of taxpayers operation preceding the year of the audit. Tax authorities may undertake separate audits of an organisation's branches and representations, irrespective of any audit that may have previously been undertaken of the organisation itself. 4.1) Court Proceeding in a tax offence case If upon a tax audit the tax body took a decision on holding the taxpayer liable for committing the tax offence (in the form of a ruling to hold the taxpayer liable), then: * Before filing a claim to the court the tax body must offer the taxpayer to pay the amount of tax due and sanctions on a voluntary basis * In case the taxpayer refuses to pay the tax due and sanctions on a voluntary basis, the tax body files a claim to the court on collecting them * A claim on collecting the tax due and sanctions from an organisation or an individual entrepreneur is filed to the arbitration court, or to the court of general jurisdiction if such are to be collected from a natural person. * A claim may be filed within the term of six moths starting from the date when the tax offence was discovered and the act of tax audit was drawn up Interpretation of unremovable doubts In accordance with Article 3 of the Tax Code, all unremovable doubts, contradictions and ambiguities of legislative acts relevant to taxes and/or charges shall be interpreted in favour of taxpayers. Conclusion In the tax system, proceeding from the Federal device of Russia, the rights and the responsibilities of corresponding levels of management (Federal and territorial) in the tax law are differentiated. Introduction of local taxes and tax collections as an addition to the list of the operating Federal taxes, stipulated by the legislation, has allowed to take into consideration various local needs and kinds of incomes for local budgets. Nevertheless the Tax Law has quite a lot of disadvantages, such as complexity, a plenty of various privileges etc., which do not stimulate economic growth. Bibliography: 1. Tax Code of the Russian Federation http://www.garweb.ru/project/mns/en/law/garweb_law/10800200/10800200-001.htm 2. Russia Tax Overview http://www.kpmg.ru/russian/supl/library/taxlegal/Tax%20Overview.pdf 3. Conesco Press. Russian Taxation http://www.conseco.ru/eng/ 4. Budgetary system of the Russian Federation http://budgetrf.nsu.ru/budget/Publications/2002/Adoption/Federal/Npd/Budgetlaws/Budget/194fz30122001/194fz30122001_short.htm 5. Wikipedia. The free encyclopedia. http://en.wikipedia.org 6. Финансовое право. Учебник для вузов. Л.Г. Вострикова. М. Изд. "Юстицинформ" 2005г. 1Wikipedia. The free encyclopedia. http://en.wikipedia.org/wiki/Tax 2Tax Code of the Russian Federation Article 8 http://www.garweb.ru/project/mns/en/law/garweb_law/10800200/10800200-001.htm 3Budgetary system of the Russian Federation http://budgetrf.nsu.ru/budget/Publications/2002/Adoption/Federal/Npd/Budgetlaws/Budget/194fz30122001/194fz30122001_short.htm 4 Conesco Press. Russian Taxation http://www.conseco.ru/eng/ 5 Conesco Press. Russian Taxation http://www.conseco.ru/eng/ 6 Russia Tax Overview http://www.kpmg.ru/russian/supl/library/taxlegal/Tax%20Overview.pdf 7Tax Code of the Russian Federation http://www.garweb.ru/project/mns/en/law/garweb_law/10800200/10800200-001.htm 8 Conesco Press. Russian Taxation http://www.conseco.ru/eng/ --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2